Managing our own destiny

QASA is dead, long live excellence. Time to fill the gap and control our own standards, writes Andrew Walker QC

In this, my first column, I have the pleasure of being able to pay tribute to last year’s Chair, Andrew Langdon QC.

His priorities included the needs of ‘core practitioners’; and he delivered. He gave voice to our concerns, whether they were about digital justice, so-called ‘flexible operating hours’, unfair competition or fees. He kept up the pressure on the government to row back on legal aid. He highlighted threats to the rule of law at home, such as in the scandal of indefinite immigration detention, so close to his heart, and in the failures in administrative decision-making. We will continue what he started.

But in doing this, he also managed the feats of setting the agenda; of capturing our mood, while steering us deftly onto the path that he judged to be right; and of showing in what he did, and how he did it, the very best of advocacy at the Bar. He grasped our attention. We saw what great advocacy can achieve. He will be a hard act to follow.

From valedictory to obituary. Unusually, though, this too is a pleasure. In case you have not heard, QASA has died.

The Quality Assurance Scheme for Advocates never aimed for greatness – competence was the pinnacle of its ambition – yet in its short and unfulfilled life, it managed to inspire the scorn of some, the wrath of many, and the unity of all in their desire to kill it off. In the end it passed peacefully; alone and unloved. Its skeleton will rattle around in the Handbook for some time yet, but we are assured that it will not return to life. It will not be mourned.

It is not just the criminal Bar who should welcome this. QASA was only the start. In time, many of us could have faced something similar.

But the joy must be tempered. The Bar Standards Board (BSB) has not taken its eye off the quality assurance ball, either in criminal defence advocacy or in any other field. The death of QASA also leaves a gap unfilled: the absence of a level playing field in crown court defence work.

The vast majority of solicitors are strong supporters of the self-employed criminal Bar. They see the benefits of a highly skilled, ethical and efficient advocacy profession, able to accept instructions from all comers: benefits for them, for their clients, for the public, and not least of all for the rule of law. They see the need, too, for junior criminal defence practice to be sustainable. But some still prioritise their own interests. They give in to the temptation to steer briefs to in-house advocates on financial grounds, and not on the grounds of skill, expertise and experience.

There are certainly some good in-house advocates; but experience shows that all too often the choice to brief in-house is not based on quality and suitability. Any doubters of this should have been silenced by Sir Bill Jeffrey.

To pursue my analogy, solicitors control the play; not all of them honour the letter and spirit of the rules; the referees do not spot infringements, or allow them to go unpunished; and rumours of ‘bungs’ persist but cannot be pinned down.

This is not fair or just to defendants, nor to the administration of criminal justice. A proper defence, and a just outcome, require advocacy that is up to the job. But it is also not fair on the self-employed Bar; we are up to the job but are not getting the work. It is not fair, too, for in-house advocates, under pressure to work beyond their competence or without the time to do it properly.

We will need different ways to level this particular playing field: some new, and some resurrected.

What of the broader future for quality assurance? The BSB has laid down a challenge to us all: ‘to take greater responsibility for [our] own learning and development’. They want instead ‘to help the profession to manage its own professionalism and standards in the quality of practice’. The language is theirs, but whatever else may be behind the decision to kill off QASA, it conveys both a warning and an opportunity in all fields of practice.

The BSB is putting alternative action in train for youth court advocacy. This will not be the only target. If we all want to avoid the offspring of QASA – accreditation? kite marks? – we would be unwise not to accept the BSB’s challenge.

But should we not also want to take up that challenge; to seize the opportunity? Is it not the duty of all of us, as professionals, to respond? We have nothing to fear, and everything to gain. These are, after all, our own standards and our own ethos, and we strive not for competence but for excellence.

We will need to do more of what we already do well, but this need not be onerous and we will control it. Despite initial scepticism, many who have been through the vulnerable witness training have positive tales of how helpful and useful it is. We will need to go further, and our efforts will need to become a long-term part of what it means to be a barrister of England and Wales; but if we can achieve that, then we will be responsible again for our own destiny. We will have taken back control. And if we strive higher, but the rest do not wish to join us or to follow us, then they must wither.

The time for this is now. The BSB and the Solicitors’ Regulation Authority have completed another survey of the views of crown court judges on the quality of advocacy. The results will be out soon. How we respond may set the tone for regulatory action – or satisfaction – for some time to come. Let us show to everyone that our regulators have no job to do here.